This is an action of scire facias, on a recognizance taken before a magistrate, in a suit pending before him on appeal, the condition of which, as set forth in the declaration, is, that the appellant “shall appear at the court aforesaid, and shall prosecute his said appeal with effect, and shall pay all intervening damages and costs,” &c. To this declaration, the defendant, who was a surety in the -recognizance, has demurred, and the question presented is, whether the contract, into which the defendant is alleged to have entered, is obligatory upon him.
There are no presumptions in favor of the jurisdiction of an inferior magistrate. The provision of R. S., c. 116, § 10, on this subject, is, that the appellant shall recognize, with sufficient surety or sureties, to the adverse party, if required by him, in a reasonable sum, with condition to prosecute his appeal with effect, and pay all costs arising after the appeal. It has been settled, that a magistrate has no authority to require the personal appearance of the appellant, at the appellate court, nor the payment of intervening damages and costs. French v. Snell, 37 Maine, 100. The recognizance is not in conformity with the requirements of the statute. The declaration sets forth no sufficient cause of action, and must be adjudged bad.
Declaration bad. — Judgment for defendant for costs.
Tenney, C. J., and Rice, Cutting and May, J. J., concurred.